An assignor cannot sue independently without joining the assignee in cases of non-absolute assignments.

Abdul Malik Ishak J:

Introduction

In encl. 7, the defendant applied on 7 December 1999 to strike out the plaintiff's claim under O. 18 r. 19(1)(b) of the Rules of the High Court ("RHC") - on the ground that it was scandalous, frivolous or vexatious, and also under the inherent jurisdiction of the court. The application was supported by an affidavit of Tan Boon Chuan that was affirmed on 17 November 1999 as reflected in encl. 6. The plaintiff naturally opposed the application and through Chan Min Swee affirmed an affidavit in reply on 8 December 1999 as seen in encl. 8. On 15 February 2000, the senior assistant registrar ("SAR") heard the defendant's application in encl. 7 and dismissed it with costs. Being aggrieved, the defendant appealed to the judge in chambers on 16 February 2000 which was also filed on the same date and this can be seen in encl. 9.

The Undisputed Facts

Within a short compass, the facts may be narrated as follows. The plaintiff purchased by way of a sale and purchase agreement dated 6 February 1995 ("SPA") an office unit no: Deluxe D, level 9, measuring 1,765 square feet at the price of RM688,350 known as the PJ Tower from the defendant. That SPA has been exhibited as exh. "T-1" of encl. 6. To date, the strata title for the office unit has yet to be issued. The plaintiff, by way of a composite loan agreement and assignment dated 10 July 1995 ("assignment"), assigned all its rights in the SPA to Arab-Malaysian Bank Bhd ("assignee bank") as security for a loan. A copy of that assignment was exhibited and marked as exh. "T-2" as seen in encl. 6. It would be interesting to note, that to date, the assignee bank has not re-assigned the rights in the SPA to the plaintiff, for an obvious reason - that the loan has not been repaid.

On 6 August 1999, the plaintiff filed the writ of summons together with the statement of claim as seen in encl. 1 for, inter alia, rescission of the SPA on the ground of, inter alia, misrepresentation and breach of contract. The assignee bank was quite magnanimous and gave a letter dated 24 July 1999 to the plaintiff stating that the assignee bank did not object to the plaintiff's legal action provided the assignment was not affected. A copy of that letter can be seen in encl. 8 and it was exhibited as exh. "A". The letter was worded thus:

Arab-Malaysian Bank Berhad

Date: 24 July, 1999 Chan Min Swee 1007, Block B, Phileo Damansara, Jalan 16/11 43350 Petaling Jaya Selangor Darul Ehsan.

Dear Sir, Re: CONSENT TO LEGAL ACTION/CLAIMS FOR BREACH OF

TERMS/CONDITIONS IN SALE AND PURCHASE AGREEMENT

PROPERTY: UNIT DELUXE D, LEVEL 9, PHILEO DAMANSARA. PURCHASERS: CHAN MIN SWEE, NING AH MOI & LIM AH MOI BORROWERS: CHAN MIN SWEE, NING AH MOI & LIM AH MOI

We make reference to your letter dated 3rd March 1999.

We Arab-Malaysian Bank Berhad (295576-U) a company incorporated in Malaysia, with its registered office at 22nd Floor, Bangunan Arab Malaysian, 55 Jalan Chulan, 50200 Kuala Lumpur and its place of business at 11th Floor, Menara Maxisegar, Jalan Pandan Indah 4/2, Pandan Indah, 55100 Kuala Lumpur the end-financier for the abovementioned property have no objection in allowing your goodself to seek legal recourse/damage against the Developer for breach of (the) terms and conditions of the Sale and Purchase Agreement.

This consent is subject to the Bank's rights, interest, claims under the Composite Loan Agreement cum Assignment dated 6th June 1995 between AMBB and the Borrowers/Purchasers remaining intact.

Thank you.

Yours faithfully, for ARAB-MALAYSIAN BANK BERHAD

Sgd. Illegible MOHD NOOR YAHYA MANAGER-RETAIL BANKING DEPT.

c.c. Legal Manager.

Issue

The defendant's application in encl. 7 to strike out the plaint